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Editor’s note: This episode was updated May 21, 2019.

TRANSCRIPT

BRIAN KENNY: According to Pew Research, there are roughly 4,300 religions in the world. 84 percent of the world’s population claims some sort of religious affiliation. The effect of religion on culture, politics, and business differs from place to place, but it’s fair to say that it matters to some degree, everywhere. Take the United States for example. Our Constitution guarantees religious freedom to every individual, and also promotes the separation of church and state in governing the country. But, 65 percent of Americans say that religion is important in their daily lives. In the 2016 Presidential election, 53 percent of voters said they would not support a candidate who did not believe in God. Inevitably, religious issues are spilling over into the workplace. According to the Equal Employment Opportunity Commission, complaints from workers regarding religious discrimination have doubled since 1997. Increasingly, the workplace is becoming a flash point for issues regarding religious freedom, and managers are expected to sort it out. I’m your host Brian Kenny, and you’re listening to Cold Call, part of the HBR presents network. Derek van Bever teaches in the MBA program at Harvard Business School, and he’s also the director of The Forum for Growth and Innovation, working with professor Clay Christensen on discovering, developing, and disseminating predictive theory on management and innovation. He also holds graduate degrees from Harvard in both business and divinity, which makes you uniquely qualified to write these two cases we’re going to be discussing. Derek, thanks for joining me.

DEREK VAN BEVER: Of course Brian, thank you for having me.

BRIAN KENNY: I think this is going to be a great interest to people, because to some degree we’ve probably all experienced something, or been on periphery or something where religion has come into the workplace in an unexpected way. As I was alluding to in the intro, the influence of religion in our daily lives seems to be actually increasing rather than decreasing, particularly in the current political climate we’re in. So, let me start just by asking you Derek, what led you to write these cases?

DEREK VAN BEVER: A few years ago we convened a group of students from the business school and the divinity school, to kind of see what happens when you cross streams. In particular, we were trying to figure out, what is the common ground between these two student bodies and common areas of interest? One issue that came up loud and clear from both sides was that, interestingly both student bodies felt unprepared to manage issues that might arise around religion and religious diversity in the workplace. Our students here at HBS were conscious that as global managers they’re increasingly likely to find themselves confronted with questions about religious practice. They themselves felt really unprepared to answer them. So, we promised to look for some opportunities to introduce these issues into the curriculum, and that really led to the writing of this case.

BRIAN KENNY: This might be the first time that divinity school students and business school students have come together this way. Is that true?

DEREK VAN BEVER: The first time in a long time. You’d have to go back to when Harvey Cox was young, in fact. So, back to the ’60s to find some of the last times we really brought the students together.

BRIAN KENNY: Wow.

DEREK VAN BEVER: Interesting.

BRIAN KENNY: Wow, that’s really cool. So, maybe we can start then by looking at the Abercrombie & Fitch case. Maybe you can set that up for us, and tell us who the protagonist is, and what’s on their mind?

DEREK VAN BEVER: Sure, this was so interesting. So, in 2008, a young Muslim woman named Samantha Elauf who was 17 at the time, applied for a salesperson job at the Abercrombie kids store in Tulsa, Oklahoma. This is a position that they called a sales model. The interview went really well. Her interviewer even said she’d be invited back for an orientation, but there was one hitch. Samantha was wearing a headscarf, and the interviewer had a nagging concern that the scarf might violate Abercrombie’s dress code, which they called, “the look.” So, the interviewer went to her regional manager, and asked for a second opinion, and her manager confirmed that the headscarf would indeed be a violation of the dress code, so they turned her down. Now, here’s where it got interesting. Samantha asked a friend of hers who worked at the store to inquire after what had happened, after she was turned down. Her friend did so, and came back and reported brightly that they had turned her down because her headscarf violated the store’s dress code. Elauf brought suit under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of religion. Six years later she found herself as the petitioner in a case before the U.S. Supreme Court.

BRIAN KENNY: Many people are probably aware that Abercrombie & Fitch has been in the spotlight before for their catalogs and the imagery they show in there. I was surprised to read in the case that it started as a sporting goods store back in the late 1800s.

DEREK VAN BEVER: That’s right. That’s right.

BRIAN KENNY: So they’ve clearly morphed into something very different as we know them today. You mentioned “the look” before. Can you describe what “the look” is?

DEREK VAN BEVER: Sure. This was very precious to the CEO of Abercrombie, a man named Michael Jeffries. He came up with “the look” as part as an overall merchandising and branding strategy. “The look” was incredibly specific as to what you could wear in the first place, and as your listeners will perhaps remember, the less the better. But for women, it was extremely specific about what their nails could look like, their hair, their shoes, the overall look. Abercrombie described it as the classic East Coast collegiate style. U.S. Supreme Court Justice Antonin Scalia characterized it as, “This mythical preppy. Somebody who came off the beach in California.” Importantly, the look was very clear, no caps.

DEREK VAN BEVER: Well, Abercrombie held that Samantha knew, or she should have known that the wearing of a headscarf would violate “the look,” and that she therefore should not have remained silent about her need for an accommodation to their policy.

BRIAN KENNY: I guess the question that it starts to delve into is, what rights does a business have to establish a set of boundaries or guidelines for the way people should appear, particularly when you’re in a customer facing role?

DEREK VAN BEVER: There’s a whole category of exceptions referred to as, “BFOQs, Bona Fide Occupational Qualifications,” that go to issues of personal appearance for models, for example. The characteristics of waitresses at Hooters, for example. And, in these kind of secular instances, employers have a fair degree of latitude, as to what amounts to a bona fide qualification. The line that Abercrombie crossed here, was when they discriminated against Samantha’s religion, in specifying what she could wear to work.

BRIAN KENNY: What was the approach I guess, that the court took in looking at this?

DEREK VAN BEVER: First of all, in both of the cases we’ll talk about today, I encourage your listeners, if they’ve got time and a certain nerdy disposition, to go read the oral arguments in front of the Supreme Court. They are fascinating examples of “managing in the gray.” It’s really interesting to see the arguments on both sides. The court spent a lot of time on this issue of knowledge. In this circumstance, this employment circumstance, what are the applicant’s responsibilities, and what are the employer’s responsibilities? In the end, the decision was fairly one-sided. The court ruled 8 to 1 against Abercrombie, and in announcing the decision, Justice Scalia said, “This is really easy.”

BRIAN KENNY: So, that’s how that one played out. Now the other one is equally complicated, but in a very different way. Tell us about Masterpiece Cake. Who’s the protagonist here, and what’s the issue?

DEREK VAN BEVER: We go from the easy to the excruciating here. This case has gotten a lot of recent publicity for a whole variety of very good reasons. In 2012, a gay couple, Charlie Craig and David Mullins, made an appointment to visit Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado. The couple were getting married, in Massachusetts in fact, where same-sex marriage was legal at the time, and they asked Mr. Phillips to make one of his masterpiece cakes for the wedding reception they planned to hold in Denver. Soon after they sat down to look through a binder of ideas for the cake, Mr. Phillips asked them who the cake was for. When he determined it was for this couple, he closed the binder, and said he couldn’t design a cake for them, that same-sex marriage violated his Christian beliefs.

BRIAN KENNY: The case points out that Mr. Phillips doesn’t see himself as a baker.

DEREK VAN BEVER: No, he sees himself as an artist, and in fact one of the things that made this case so excruciating, was that he has been so consistent over time in his … in holding to that self-perception that he’s an artist, and an artist moreover in service of his faith. So for example, he has steadfastly refused over the years to make Halloween cakes or any cakes featuring witchcraft. He won’t make cakes for bachelor or bachelorette parties. He won’t make divorce cakes. Who knew there were divorce parties? To be fair, he offered that the couple could buy any one of his pre-made creations in the store for their reception. He just held, that as an artist, he couldn’t pour his creative energy into a cake for an occasion that he couldn’t personally endorse.

BRIAN KENNY: Okay, so he’s been consistent, at least in the respect of letting his religious beliefs drive the work that he will accept or not accept in the situation. So, what did the Supreme Court focus on in this one?

DEREK VAN BEVER: Again, the transcript here is fascinating. The judges were all over counsel from both sides, from the very beginning with all kinds of hypothetical scenarios. Is a cake speech? Is this a First Amendment issue? Would forcing Mr. Phillips to make a cake, therefore be compelled speech? Is a cake art? We don’t force artists to take commissions, how about a baker? What if it wasn’t a cake, but a wedding invitation or a caterer or a limo service? Challengingly, what if it weren’t a same-sex marriage, but an interracial marriage? What if Mr. Phillips were African-American, and he was asked to design a cake for a rally of the Ku Klux Klan? You can see that this got very hot. At one point Justice Gorsuch asked kind of out exasperation, “What is the line? How would you have this court draw the line?”

BRIAN KENNY: I think that’s a really key question, because I kept asking myself that same question. Certainly, if you’re a manager and you are sort of thrust into one of these situations, like where do you draw the line? What’s appropriate for you to do and what not to do? What are some of the issues that you see coming up from the business lens?

DEREK VAN BEVER: Well as you observed, the hazard around these situations has grown over the years. Both in terms of the number of complaints, as well as the amount of monetary settlements. The religious landscape is getting much more complex, even companies that have developed policies around working on Sundays or working on the Jewish Sabbath, need to consider a much larger set of world religions now. I think if we were to summarize our advice to managers, it is to be prepared. In both of these situations, you had an encounter where one party or the other felt violated in some way, treated brusquely, and because there was no immediate awareness of the law or of company policy, these things kind of blew up over time, into issues that landed before our ultimate court. I would suggest to your listeners, to check and see if they have a written policy that articulates how to handle issues of religion in the workplace, in a way that is instructive and useful to management. My guess is most companies don’t. Let me emphasize as well, that while the decision in the Abercrombie case, while Justice Scalia said that that was easy, the decision in the Masterpiece case was anything but. In fact, the court pretty much punted on this. Rather than deciding which of these two sides’ arguments held sway, they ruled in favor of the baker 7 to 2, but on the grounds that the Colorado Civil Rights Commission, in earlier lower court rulings, had been dismissive, even insulting as to his religious convictions. So, that’s a really good lesson to take away. When somebody feels, not just not accommodated, but insulted by your approach to their religious convictions, that’s a real recipe for escalation.

BRIAN KENNY: Have you discussed these cases in the classroom?

DEREK VAN BEVER: We have. We introduced this into our first year managerial responsibilities course called Leadership and Corporate Accountability last year, and had a wonderful set of discussions. It was actually one of our most popular cases. I think probably because it was liberating, for both the students and the teachers, to have this conversation. One of the students that we spoke with, referred to religion as one of the last taboos in the HBS classroom, and that’s not far wrong. Religion comes up obliquely in a number of cases, but in very few instances do we actually focus on, how do you manage these issues in the workplace? The students really appreciated it. They had an opportunity to explain how their own religious convictions … or lack of same guided their behavior and their sense of right and wrong. They also then had the opportunity in the course of that discussion to walk around in other peoples’ shoes and understand the issue from the other side. I think they knew each other a lot better after that discussion, and the section that I led, some students who had felt in some ways bottled up all year, in terms of bringing their whole selves to the classroom, really had a chance to talk about how their convictions shape them. The teachers as well. I asked one of my colleagues earlier today what, in preparation for this, what his reaction had been, because I realized I’d never asked him. He said, “I think that a fairly widespread assumption has been that these topics are treacherous, and that if we raise them in the classroom, we have to put on hazmat suits. But, my tentative takeaway is that you can have a good discussion of these topics, if you treat them more or less like regular topics.” I think part of that normalization of getting this into the flow of the dialogue in the program is a really good thing.

BRIAN KENNY: His remarks there are probably indicative of the way people feel in the workplace too. It does seem like the third rail, like you don’t want to go there. I can recall, back when 9-11 happened, I was working at a large technology company at the time. We had a lot of Muslim employees, and the Muslim employees were feeling, of course a lot of pressure in the days following the attack, as all the information surface about who was responsible. I always gave the company credit, because we had a prayer room, and they made sure that the Muslims felt comfortable, that they could access that room at the times that they needed to. They didn’t do anything, I think except try to accommodate them even more, kind of doubled down on accommodating what they thought those folks’ needs were at the time. So, this is going back quite a while, in a very heated type of environment, who we’ve talked a lot about this from the employer’s perspective, and what managers can think about doing to make sure that they’re as prepared as possible to deal with these issues. But, what about from the employee’s perspective? If you look at many companies, that are global in nature, they have people who practice religions that have to be practiced every day and sometimes during the day at inconvenient times. What can they expect or should they expect from their employers?

DEREK VAN BEVER: This is a really important takeaway from the conversation. If employees need an accommodation to practice their religion, like to set aside time for prayer every day for example, they need to ask their employer for an accommodation. Importantly, the employer has to be seen to make a reasonable effort to satisfy that accommodation. A reasonable effort, that’s the standard. They don’t have to meet the accommodation in all of its particulars. They can even turn it down, but as in so many areas of management, good process matters. That’s one of the reasons we wanted to teach this case in our required course on management responsibilities.

BRIAN KENNY: Derek, thanks so much for joining me today.

DEREK VAN BEVER: Of course, thank you Brian.

BRIAN KENNY: If you enjoy Cold Call, you should check out HBS Skydeck, a podcast series that features interviews with HBS alumni from across the world of business, sharing lessons learned and their own life experiences. I’m Brian Kenny, your host, and you’ve been listening to Cold Call, an official podcast of Harvard Business School.